The opinion
Vergara v Fligr
2025 NY Slip Op 31619(U)
May 5, 2025
Supreme Court, New York County
Docket Number: Index No. 452780/2021
Judge: Judith N. McMahon
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: NEW YORK COUNTY CLERK 05/05/2025 04:54 PM INDEX NO. 452780/2021
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 05/05/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JUDITH N. MCMAHON PART 30M
Justice
------------------------------------------------------------------------X INDEX NO. 452780/2021
MICHAEL VERGARA,
MOTION DATE 04/29/2025
Plaintiff,
MOTION sea. NO. 004
- V-
JENNIFER FLIGR, CHRISTOPHER NIQUETTE, NEW DECISION + ORDER ON
YORK CITY HEALTH AND HOSPITALS CORPORATION
MOTION
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 004) 156, 157, 158, 159,
160,161 , 162, 163,164,165,166,167, 168, 169, 170, 171,172,173,174,175, 176, 177,179, 180,181,
182, 183, 184, 185, 186, 187, 188, 189, 190
were read on this motion to/for JUDGMENT-SUMMARY
Upon the foregoing documents, it is ordered that defendants' motion for summary
judgment is granted to the extent that the following allegations made by plaintiff and contained
in his Verified Bill of Particulars (see NYSCEF Doc. No. 70) are hereby dismissed : (1) other
"culpable conduct" by defendants; (2) additional interrogatories related to 8 NYCRR §29.2(a)
(3,5) and Education Law §6530 (id., pp 1-2), and (3) injury to teeth #14 and #21. The balance
of the motion is denied. Plaintiff's cross motion was not considered by the Court as it is
untimely, and plaintiff failed to obtain court approval for added time as per Part Rules. Further,
any allegation by plaintiff as to experimental treatment in relation to informed consent is hereby
dismissed for failing to allege any such theory prior to the making of this motion (see, e.g.,
Sacino v. Warwick Valley Cent. School Dist., 138 AD3d 717 [2d Dept. 2016]).
This dental malpractice action concerns root canal care and treatment rendered to plaintiff
for his lower left molar, tooth #20, between April 4, 2018, and May 23, 2018.
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It is undisputed that the defendant dentist, Dr. Fligr, first began treating tooth #20 on
April 4, 2018, at which time she performed a pulpectorny (removal of pulp/infection from the
crown and roots of the decayed tooth). No x-rays were taken during the April 4 th visit, and
plaintiffs most recent x-ray was seven months earlier. Dr. Fligr prescribed antibiotics, and a
second appointment for "part two" of the root canal was scheduled for May 21, 2018.
On May 21 5 \ Dr. Fligr placed a flexible, rubbery dental material (gutta-percha) and
sealed tooth #'20 with temporary dental filling to fill the empty canal where the nerve was.
Plaintiff suffered a micro-perforation I of tooth #20, which was not apparent clinically or on any
x-rays taken on May 21, 2018.
On May 23· 2018 , plaintiff returned to defendants' office with complaints of pain. The
micro-perforation was recognized, and plaintiff was offered a bone graft and apicoectomy
(removal of the tooth's root and surrounding tissue), with the intention that a crown would
ultimately be placed to cover the perforation, and the tooth might be salvaged. However, plaintiff
never returned for the final step of the process, and tooth #20 was ultimately extracted two
months later by another doctor.
Defendants move for judgment dismissing the complaint on the grounds that the care and
treatment provided by NYCHH/Metropolitan and Dr. Fligr complied in all respects with the
standards of good and accepted dental practice, and that none of the defendants' alleged
departures or acts of omission were a proximate cause of plaintiffs alleged injures. Plaintiff
opposes the motion.
To prevail on a motion for summary judgment, the proponent must make prima facie
showing of entitlement to judgment as a matter of law, through admissible evidence
According to defendant's expert, tooth perforation is a known risk of the root canal procedure.
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demonstrating the absence of any material issue of fact (see Klein v., City of New York, 89 NY2d
833 ( 1996); Ayotte v. Gervasio, 81 NY2d 1062 (1993 ); Alvarez v. Prospect Hospital, 68 NY2d
320 (1986).
"Since summary judgment is the equivalent of a trial, it has been a cornerstone of New
York jurisprudence that the proponent of a motion for summary judgment must demonstrate that
there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of
law" (Ostrov v. Rozbruch, 91 AD3d 147 [l5 1 Dept. 2012]).
In support of the motion, defendants submit an expert affirmation from a dentist, Stanley
C. Heifetz, D.M.D. (see NYSCEF Doc. No. 160), who emphasizes that "failed conservative
treatment is not an indication of negligence" (id. , para. 17) and opines, specifically, that (I)
proceeding with root canal was an acceptable form of treatment for plaintiffs abscess in tooth
#20; (2) there is no evidence that any aspect of the root canal was negligently performed; (3) Dr.
Fligr properly performed a pulpectomy on 4/4/18 to remove the nerves within the tooth and to
address infection; (4) antibiotics were appropriately prescribed to address the infection and
inhibit progression of further infection; (5) Dr. Fligr properly performed further root canal
treatment on May 21, 2018 by placing the flexible rubbery dental material (gutta-percha); (6) Dr.
Fligr properly obtained multiplex-rays during and after the May 21 st treatment; (7) there is no
evidence that plaintiff left with a perforation on May 21 st and if he did, it was not visible on
either exam or x-ray and does not raise to the level of malpractice because it is an accepted risk
of the procedure; (8) the tooth perforation was timely recognized and addressed when plaintiff
returned in pain on May 23, 2018; (9) plaintiff was appropriately offered a bone graft and
apicoectomy after refusing the tooth extraction, and failed to return for crown restoration to
complete the last step of root canal treatment, and ( 10) "any claim that defendants failed to
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properly obtain informed consent is without merit because the records and testimony
demonstrate that plaintiff was advised of all the appropriate and foreseeable risks, benefits and
alternatives to the procedure and defendants obtained a valid informed consent from plaintiff
notwithstanding the absence of a written document.
"The affirmation of defendants' expert was sufficient to meet defendants' primafacie
burden of establishing the absence of a departure from good and accepted medical practice, or
that any such departure was not a proximate cause of Mr. Vergara's alleged injuries (Einach v.
Lenox Hill Hosp., 160 AD3d 443 [1 st Dept. 2018]).
"Where a defendant makes a primafacie case of entitlement to summary judgment
dismissing a [dental] malpractice action by submitting an affirmation from a medical expert
establishing that the treatment provided to the injured plaintiff comported with good and
accepted practice the burden shifts to the plaintiff to present evidence in admissible form that
demonstrates the existence of a triable issue of fact" (Bartolacci-Meir v. Sassoon, 149 AD3d 567
[Pt Dept. 2017]; see also DeCintio v. Lawrence Hosp, 25 AD3d 320 [Pt Dept. 2006]; Ducasse v.
New York City Health & Hosps. Corp., 148 AD3d 434 [1 st Dept. 2017}; Zuckerman v. City of
New York, 49 NY2d 557 (1980).
In opposition to the motion, plaintiff submits the affirmation of Chanelle Small, DDS
(see NYSCEF Doc. Nos. 180) who opines, among other things, that "it was a departure from
accepted professional practice to begin any part of an endodontic treatment to tooth #20 on
4/4/ l 8 without employing procedure radiographs in the treatment" (i.e., "you cannot undertake
an endodontic procedure without timely pre-procedure films" (id., para 24) and further, that the
absence of a note in the chart or consent form executed by plaintiff on any date for an
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NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 05/05/2025
endodontic procedure was a departure from the standard of care (id., para. 67). Also noted by Dr.
Small is the absence of a note indicating disclosure to plaintiff that Dr. Fligr was a general
dentist and not an endodontist, and that an endodontist would be made available to plaintiff
should he desire a consultation. Plaintiffs expert is unwavering that "the loss of tooth #20 was
directly caused by the endodontic treatment technique errors and failed procedures by Dr. Fligr"
and that "the tooth was viable and restorable" (id, para 70).
Dr. Small' s affirmation raises clear questions of fact sufficient to defeat summary
judgment, including whether defendant complied with the standard of care in undertaking
treatment of tooth #20 without first obtaining x-rays on April 4, 2018, and whether plaintiff was
properly consented for root canal of tooth #20. "The medical experts' conflicting
opinions .. . raise issues of fact that must be resolved at trial" (Hendricks v. Transcare New York,
Inc. , 158 AD3d 477 [I st Dept. 2018]), and accordingly, summary judgment dismissing plaintiffs
complaint in its entirety must be denied.
Accordingly, it is
ORDERED that all of plaintiffs allegations as to defendants' culpable conduct,
additional inten-ogatories related to 8 NYCRR §29.2(a) (3,5) and Education Law §6350 are
severed and dismissed; and it is further
ORDERED that all allegations of injury to tooth # 14 and tooth #21 are severed and
dismissed; and it is further
ORDERED that all references by plaintiff to experimental treatment in relation to failure
to obtain his informed consent are severed and dismissed; and it is further
ORDERED that the balance of the motion for summary judgment is denied; and it is
further
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Motion No. 004
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FILED: NEW YORK COUNTY CLERK 05/05/2025 04:54 PM INDEX NO. 452780/2021
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 05/05/2025
ORDERED that all further requests for relief are denied; and it is further
ORDERED that the parties appear in person, on June 26, 2025, in Part 40 at 60 Center
Street, New York, New York, to select a trial date .
This is the Decision and Order of the court.
5/5/2025
DATE
~
CHECK ONE: CASE DISPOSED NON-FINAL DISP •
GRANTED □ DENIED GRANTED IN PART
APPLICATION : SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE : INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
Hon . .TuditJ1 N. McMahon
J.S.C.
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